What is testamentary capacity?

| Mar 12, 2021 | wills and trusts

Challenging a will is usually extremely difficult. This is because the courts generally see a person’s last will and testament as the direct voice of the deceased. Since that person is no longer around to speak for their own wishes, the courts rely on the will.

However, there are legitimate reasons to challenge a will. One of the most common reasons for challenging a will is to question the testamentary capacity of the person who created it.

What is testamentary capacity?

In the majority of cases, American courts consider persons over the age of 18 years old to have “testamentary capacity.” This means that they have the right to make decisions over their own legal affairs. The same testamentary capacity that allows a person over the age of majority to craft a will also allows that person to enter into contracts and other legal situations barred to minors.

What could affect a person’s testamentary capacity?

By far, the most common challenge to a deceased person’s testamentary capacity has to do with forms of dementia. However, some cases arise that involve insanity, being under the influence of an intoxicating substance or other potential mitigating factors that could influence an individual’s ability to form a will.

In order for a person to possess testamentary capacity, that individual must have a general understanding of their situation. That is, the person must understand the extent and value of a assets that he or she is passing down as well as who the exact beneficiaries of the will are. In the event that you have evidence that the person who created the will did not understand the consequences of doing so, you may be able to successfully challenge it.

FindLaw Network